Government will begin a period of public consultation on proposed changes to the Firearms Law tomorrow, Friday, 22 November 2013.

Friday’s Extra-ordinary Gazette will contain a draft Bill to amend the Firearms Law to add offences that relate to the modification of anything to make it appear or operate like a firearm.

Penalties for such modification, and the possession, handling, acquiring or selling of a modified object reach a maximum of $100,000 and imprisonment for ten years.

In addition the draft bill proposes offences with similar penalties for handling firearms and bullet proof vests without authorisation. It also lays out powers of detention and search for police and customs officers who have reasonable cause to believe that a firearm or bullet-proof vest may be concealed.

The draft will be published on the Government website www.gov.ky and www.judicial.ky.

Feedback should be sent to Ms Tesia Scott, at email [email protected], or c/o the Attorney General’s Chambers, Fifth Floor, Government Administration Building. Comments must reach Ms Scott no later than 18 December 2013

The Firearms Law was last revised in 2008.

Pointing to what appears to be a recent increase in gun crime Premier and Minister for Home Affairs Alden McLaughlin urged the public to take part in the consultation.

“We are trying to address recent trends that we have seen come through the system. Public input will help to ensure that the legislation is as effective as possible,” Mr McLaughlin said.

Supplement No. 1 published with Extraordinary Gazette No. 93 dated 22nd November, 2013.

A BILL FOR A LAW TO AMEND THE FIREARMS LAW (2008

REVISION) TO CREATE THE OFFENCE OF MODIFYING A THING TO APPEAR OR OPERATE LIKE A FIREARM; TO CREATE THE OFFENCE OF HANDLING; TO PROVIDE GREATER POWERS OF SEARCH; TO MAKE PROVISION FOR WARRANTS OF DETENTION; AND FOR INCIDENTAL AND CONNECTED PURPOSES

THE FIREARMS (AMENDMENT) BILL 2013

MEMORANDUM OF OBJECTS AND REASONS

This Bill amends the Firearms Law (2008 Revision) to make provision for the offences of modifying a thing to appear or operate like a firearm, and handling. The Bill also provides for the expansion of the powers of search in relation to firearms offences.

Clause 1 of the Bill provides the short title of the legislation.

Clause 2 amends section 2 of the principal Law to add a definition of the term “vessel” and  define  what is  meant by  the  term “handles” in  the  context of handling a firearm, bullet-proof vest or anything which has been modified to make it appear that it is a firearm.

Clause 3 inserts into the principal Law a new section 12A which would create the offences of –

(a)       modifying  the  construction or  action  of  anything to  make  it appear or operate as a firearm; and

(b)   possessing, handling, acquiring or selling anything so modified.

The offences would be punishable by a maximum fine of one hundred thousand dollars and imprisonment for ten years.

Clause 4 of the Bill inserts into the principal Law new sections 18A and 18B. The new section 18A would create the offences of handling a firearm or bullet-proof vest which would be punishable by a maximum fine of one hundred thousand dollars and imprisonment for ten years. The new section 18B would impose a factual presumption of knowledge on the part of an accused person, once it is proven to the Court beyond reasonable doubt that, among other things, a person imported, had in his possession or concealed anything containing a firearm or bullet-proof vest or had supplied to another anything containing such items.

Clause 5 inserts into the principal Law a new section 30A which would give police officers and customs officers the power to detain and search a person, or break open and search any premises, vehicle or vessel, without warrant, provided the Officer has reasonable cause to suspect that any such firearm or bullet-proof vest may be concealed.

Clause 6 inserts into the principal Law new sections 35A and 35B. The new section 35A would provide that a person detained on suspicion of committing an offence under the principal Law or any other offence involving the use of a firearm, may be detained, on application to the summary court by a police officer of the rank of Chief Inspector or above, for an initial period of up to ten days. The Court must be satisfied that the continued detention is justified to secure or preserve evidence, to obtain evidence by questioning the detained person or to allow investigating officers to obtain forensic test results, and that the investigation is being conducted  diligently and expeditiously. The detained person is entitled to legal representation and to be present at the hearing to decide on his period of detention. Under the new section 35B, the Court would be empowered to extend the period of detention for a further period of ten days, on application by a police officer of the rank of Chief Inspector or above, if it is satisfied that there are reasonable grounds to do so. The total period of detention including the original period of detention may not exceed twenty days.

Clause 7 of the Bill amends section 38 of the principal Law to provide that the new offence of modifying the construction or action of anything to make it appear or operate as a firearm, and the new offence of handling a firearm or bullet-proof vest, would be triable as Category B offences.

Clause 8 repeals and substitutes section 40 of the principal Law to correct three clerical errors in the section references.

Clause 9 amends section 41 of the principal Law to enable the forfeiture of firearms and bullet-proof vests of persons convicted for the offence of handling.

ARRANGEMENT OF CLAUSES

1.         Short title

2.         Amendment of section 2 of the Firearms Law (2008 Revision) – definitions and interpretation

3.         Insertion of section 12A – modifying a thing to make it appear or operate as a firearm

4.         Insertion of sections 18A and 18B – handling firearm or bullet-proof vest;

presumption of possession or handling of firearm or bullet-proof vest

5.         Insertion of section 30A – power to search

6.         Insertion of sections 35A and 35B – warrant for detention without charge;

extension of warrant for detention

7.         Amendment of section 38 – Category B offence

8.         Repeal and substitution of section 40 – restriction on eligibility for release on licence

9.         Amendment of section 41 – forfeiture of firearms

A BILL FOR A LAW TO AMEND THE FIREARMS LAW (2008

REVISION) TO CREATE THE OFFENCE OF MODIFYING A THING TO APPEAR OR OPERATE LIKE A FIREARM; TO CREATE THE OFFENCE OF HANDLING; TO PROVIDE GREATER POWERS OF SEARCH; TO MAKE PROVISION FOR WARRANTS OF DETENTION; AND FOR INCIDENTAL AND CONNECTED PURPOSES

ENACTED by the Legislature of the Cayman Islands.

1.         This Law may be cited as the Firearms (Amendment) Law, 2013.

2.         The Firearms Law (2008 Revision), in this Law referred to as the “principal Law”, is amended in section 2 as follows –

(a)       in subsection (1) –

(i)    by deleting the word “and” appearing at the end of the definition of the words “restricted person”;

(ii)   by  deleting  the  full  stop  appearing  at  the  end  of  the definition of the word “traveller” and substituting a semi- colon and the word “and”; and

(iii)  by inserting, after the definition of the word “traveller”, the following definition

“ “vessel” includes any ship, aircraft, hovercraft, vehicle or thing   in   which   anything   may   be   carried,   stored   or secreted.”; and

(b)   in subsection (2) –

(i)        by  deleting  the  word  “and”  appearing  at  the  end  of

paragraph (a);

(ii)   by deleting the full stop appearing at the end of paragraph

(b) and substituting a semi-colon and the word “and”; and

(iii)  by inserting after paragraph (b) the following paragraph –

“(c)  a person “handles” a firearm, bullet-proof vest or any thing the construction or action of which has been modified to make it appear or operate as a firearm, if – (i) he  is  in  any  way  concerned  with  removing, carrying, harbouring, keeping or concealing that firearm, bullet-proof vest or thing, or anything containing  that   firearm,  bullet-proof  vest  or thing; or

(ii)   he deals in any manner with that firearm, bullet-

proof vest or thing.”.

3.         The principal Law is amended by inserting after section 12 the following section

12A. (1)   No person shall, without lawful authority –

(a)    modify  the  construction  or  action  of  any thing to make it appear or operate as a firearm;

(b)   possess or handle any thing the construction or  action  of  which  has  been  modified  to make it appear or operate as a firearm; or

(c)    acquire or sell any thing the construction or action of which has been modified to make it appear or operate as a firearm.

(2)   Whoever contravenes subsection (1) is guilty of an offence and liable on conviction to a fine of one hundred thousand dollars and to imprisonment for ten years.”.

4.         The principal Law is amended by inserting after section 18 the following sections –

possession or handling of firearm or bullet- proof vest

18A. (1)   No  person   shall,  without lawful authority, knowingly handle a firearm or bullet-proof vest.

(2)   Whoever contravenes subsection (1) is guilty of an offence and, subject to section 39, is liable on conviction to a fine of one hundred thousand dollars and to imprisonment for ten years.

18B. (1)   Without prejudice to any other provision of this Law –

(a)    where it is proved beyond reasonable doubt that a person imported anything containing a firearm or bullet-proof vest, it shall be presumed, until the contrary is proved, that such person knew that such firearm or bullet- proof vest was contained in such thing;

(b)   where it is proved beyond reasonable doubt that a person had in his possession or custody or under his control anything containing a firearm or bullet-proof vest, it shall be presumed, until the contrary is proved, that such person was in possession of or handled such firearm or bullet-proof vest;

(c)    where it is proved beyond reasonable doubt that a person supplied to any other person anything containing a firearm or bullet-proof vest, it shall be presumed, until the contrary is proved, that such first-mentioned person knew that such firearm or bullet-proof vest was contained in such thing;

(d)   where it is proved beyond reasonable doubt that a person is in any way concerned in carrying, removing, harbouring, keeping, concealing,   handling   or   dealing   in   any manner with anything containing a firearm or bullet-proof vest, it shall be presumed, until the contrary is proved, that such person knew that such firearm or bullet-proof vest was contained in such thing;

(e)    where it is proved beyond reasonable doubt that a person had in his possession or custody or under his control a dock warrant, warehouse warrant or order, baggage receipt or claim, airway-bill, bill of lading or other similar document relating to anything containing a firearm or bullet-proof vest, it shall be presumed, until the contrary is proved, that such person was in possession of such firearm or bullet-proof vest;

(f)    where it is proved beyond reasonable doubt that a person had in his possession or under his control any vehicle, vessel or other thing in or on which is found any firearm or bullet- proof vest, until the contrary is proved, he shall be deemed to have had in his possession such firearm or bullet-proof vest; and

(g)   where it is proved beyond reasonable doubt that a person is the owner, tenant, lessee or occupier of any dwelling house or other private premises in or on which is found any firearm or bullet-proof vest, until the contrary is proved, he shall be deemed to have had in his possession such firearm or bullet-proof vest.”.

5.         The principal Law is amended by inserting in Part VI immediately before section 31, the following section –

30A. (1)   Notwithstanding   the   powers   provided   under sections 18(12) and (13), if a constable or customs officer has reasonable cause to suspect that any person is in possession of a firearm or bullet-proof vest in contravention of this Law he may, without warrant, detain and search such person and whether or not any person is detained or searched may, without  warrant,  break  open  and  search  any  premises, vehicle,  vessel   or   thing   whatsoever  in   which   he   has reasonable cause to suspect that any such firearm or bullet- proof vest may be concealed.

(2)   No   person  shall,   in   exercise  of   the   powers conferred by subsection (1), conduct a personal search of a person not of the same sex.

(3)   In this section a “customs officer” means a person appointed to be an officer of Customs under section 6(1) of the Customs Law (2012 Revision).

6.         The principal Law is amended by inserting after section 35 the following sections –

35A. (1)   Notwithstanding any other Law, where a person

has been arrested and detained by a constable on suspicion of committing –

(a)      an offence under this Law; or

(b)   any  other  offence  involving  the  use  of  a firearm, the provisions of this section and section 35B shall apply.

(2)   Where, on an application on oath made by a police officer of the rank of Chief Inspector or above and supported by an affidavit, the summary court is satisfied that there are reasonable grounds for believing that the continued detention of the person to whom the application relates is justified, the summary court may issue a warrant of detention authorizing the keeping of that person in detention without charge for a period not exceeding ten days.

(3)   The summary court shall not hear an application for a warrant of detention unless the person to whom the application relates –

(a)       has  been  furnished  with  a  copy  of  the affidavit; and

(b)   has been brought before the summary court for the hearing.

(4)  The person to whom the application relates is entitled to be legally represented at the hearing and, if he is not so represented but wishes to be so represented, the summary court shall adjourn the hearing to enable him to obtain representation, and he may be kept in detention during the adjournment.

(5)   A  person’s  detention  is  only  justified  for  thepurposes of this section or section 35B if –

(a)   his detention without charge is necessary –

(i)    to secure or preserve evidence relating to  an  offence  for  which  he  is  under arrest or to obtain such evidence by questioning him; or

(ii)   to allow investigating officers sufficient time to obtain the results of forensic testing in order to determine whether to charge the person with an offence; and

(b)   the  investigation  of  the  offence  is  being conducted diligently and expeditiously.

(6)   An application for a warrant of detention may be made at any time before the expiry of ninety-six hours after the time when the person has been arrested.

(7)   A warrant of detention shall –

(a)       state the time at which it is issued; and

(b)   authorize  the  keeping  in  detention  of  the person  to  whom  it  relates  for  the  period stated in it.

(8)   The period stated in a warrant of detention shall be such period, not exceeding ten days, as the summary court thinks fit, having regard to the evidence before it.

(9)   An affidavit submitted in support of an application under this section shall state –

(a)    the nature of the offence for which the person to whom the application relates has been arrested;

(b)   the general nature of the evidence on which that person was arrested;

(c)    what inquiries relating to the offence have been made by the police and what further inquiries are proposed by them; and

(d)   the reasons for believing the detention of that person is  necessary while  further  inquiries are conducted.

(10) Where an application under this section is refused, the person to whom the application relates shall immediately be charged or released, either on bail or without bail.

(11) Where an application under this section is refused, no further application shall be made under this section in respect of the person to whom the refusal relates, unless it is supported by evidence which has come to light after the refusal.

(12) Upon expiry of a warrant of detention, the person to whom the warrant relates shall be released from detention, either on bail or without bail, unless he is charged.

(13) A person released under subsection (12) shall not be re-arrested for the offence for which he was previously arrested unless new evidence justifying a further arrest has come to light.

(14) Subsection (13) does not prevent the re-arrest without a warrant of a person who, having been released on bail subject to conditions, breaches any of those conditions.

(15) For the purposes of this section, where –

(a)    a person in detention is taken from a police station to a hospital because he is in need of medical treatment; or

(b)   a person is arrested while in a hospital, any time utilised by a constable in questioning him in the hospital, on the way to the hospital or to the police station for the purpose of obtaining evidence relating to an offence, shall be included as part of the period of detention and shall be recorded as such in the custody record as soon as is practicable.

35B. (1)   On an application on oath made by a police officer of the rank of Chief Inspector or above and supported by an affidavit, the summary court may extend a warrant of detention issued under section 35A, if it is satisfied that there are reasonable grounds for believing that the further detention of the person to whom the application relates is justified.

(2)   Subject to subsection (3), the period for which a warrant of detention may be extended shall be such period as the summary court thinks fit, having regard to the evidence before it.

(3)   The period for extension of a warrant of detention together with the original period of detention granted under section 35A, shall not exceed a total of twenty days.

(4)  A warrant of detention, if extended under this section, shall be endorsed with a note of the period of the extension.

(5)   Subsections (3), (4), (9) and (15) of section 35A shall, with necessary changes, apply to an application made under this section as they apply to an application made under that section.

(6)   Where an application under this section is refused, the person to whom the application relates shall immediately be charged or, subject to subsection (7), released, either on bail or without bail.

(7)   A person need not be released under subsection (6) before the expiry of a warrant of detention issued in relation to him under section 35A.”.

7.         The principal Law is amended in section 38 by repealing subsection (1) and substituting the following subsection –

“          (1)   Any offence with which a person is charged under sections 3(2),

4(2), 5(2), 8, 12(3), 12A, 15(5), 18(6), 18(7), 18(9), 18(10) and 18A is

triable as a Category B offence.”.

8.         The principal Law is amended by repealing section 40 and substituting the following section –

40.   Notwithstanding any other Law, a person –

(a)       convicted of an offence under section 3(1)

and sentenced under section 3(3);

(b)   convicted of an offence under section 15(1)

and sentenced under section 15(5); or

(c)       convicted of an offence under section 18(6)

and sentenced under section 18(6),

shall not be eligible to be released on licence.”.

9.         The principal Law is amended in section 41 by repealing paragraph (e) and substituting the following paragraph –

“(e)  any offence under section 18(6), (8), (9) or (10) or section 18A(1),”.

Passed by the Legislative Assembly the  ***** day of  *******, 2013.

Speaker.

Clerk of the Legislative Assembly